Pennsylvania Supreme Court: Public School Employees Have Constitutional Right to Privacy in Their Home Addresses

A public employee’s right to privacy was analyzed in some detail by the Pennsylvania Supreme Court in a decision entered October 18, 2016. Pa. State Educ. Ass’n v. Commonwealth. See 41 IER Cases 1310 (Pa. 2016). The Court considered the history of that state’s Right to Know Law (RTKL) as well as federal and state constitutional protections. The court’s deep dig into the privacy issues extends back to 1890 and a regularly cited law review article, Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). There, Warren and Brandeis stated that all citizens have the “right to immunity of the person,” the “right to be let alone,” and the “right to one’s personality.” Sometimes referred to as the “right of informational privacy,” the Pennsylvania Supreme Court applied such a right to the home addresses of public school employees. Although the Court struggled with the argument that the RTKL changed the analysis, a majority of the Court determined that the constitutional right to privacy must be considered in any balancing of claims for public records disclosure under the RTKL. As to employee’s home addresses, the Court found no basis to overcome the constitutionally protected privacy interest.

A concurring opinion was critical of the Court’s application of the rules of statutory construction. The concurring opinion would hold that the matter was controlled by the constitutional right to privacy and that the RTKL had no application. In discussing United States Supreme Court authority, the concurrence stated that “it may well be true that home addresses are publicly available through easily accessible sources. . . . However, '[a]n individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.’” Citing Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989), and Dep’t of Defense v. Federal Labor Relations Auth., 510 U.S. 487 (1994).

In 1987, the Washington Legislature amended the state’s Public Records Act (PRA) to define an invasion of privacy:

A person's “right to privacy,” “right of privacy,” “privacy,” or “personal privacy,” as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. The provisions of [the PRA] dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records.

RCW 42.56.050. Personal residential addresses of public employees (and their dependents) are considered private and not subject to disclosure under RCW 42.56.250(3). See Public Records Act for Washington Cities, Counties, and Special Purpose Districts (MRSC, 2016), available at http://mrsc.org/Home/Publications.aspx.

Pennsylvania County Must Disclose Contractor's Employment Records - Even Though County Doesn't Have Them

Allegheny County, Pennsylvania contracts with hundreds of service providers. One of those contracts is with A Second Chance, Inc. (ASCI), where ASCI evaluates an individual’s qualifications to provide foster care to dependent children. A Pittsburgh television station requested that the County provide the “names, birth dates and hire dates of all employees” of ASCI who provide services to the County. Not surprisingly, the County said that those records were not available to the County and they rejected the television station’s request under the Pennsylvania Right-To-Know-Law (RTKL). Without explaining how the County should get the records, the Commonwealth Court of Pennsylvania (a court whose jurisdiction is generally limited to legal matters involving State and local governments and regulatory agencies) held that the employment records of ASCI were “public records” and accessible under the RTKL. It is unclear what process would be used under the RTKL by a local government to recover such records from a contractor.

In Washington, a contracting agency that provides governmental services is generally considered an agency and subject to the Washington Public Records Act. Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185 (2008). In the most common situation, the request would be made directly to the contracting agency (in Pennsylvania, ASCI). But in the event a request is not made directly to the contracting agency, but instead to the local government, the local government must either recover the documents from the contractor or maintain a separate court action to protect the local government from liability under the Public Records Act. See, e.g., City of Federal Way v. Koenig, 167 Wn.2d 341 (2009), discussed in the October 23, 2009 posting on this site: “WA Supreme Court Re-Affirms that Public Records Act Does Not Apply to the Judiciary.”

In Washington, as in Pennsylvania, the fact that an agency subject to the Washington Public Records Act does not possess a document does not necessarily preclude agency responsibility for producing a public record. See Concerned Ratepayers v. PUD No. 1, 138 Wn.2d 950 (1999) (design specifications for power plant prepared by PUD’s contractor, but not in possession of PUD, required to be disclosed).
 

City of Tough Love: The full Council must hear testimony

A divided Pennsylvania Supreme Court has told the Philadelphia City Council that under Pennsylvania’s Sunshine Law, the City Council – as a whole – must allow public comment on pending legislation. [Alekseev v. City Council of City of Philadelphia, 2010 WL 4643724] The Pennsylvania Supreme Court overturned a long-standing policy in Philadelphia where Council committees, instead of the Council as a whole, scheduled and received public testimony on pending legislation. The Court found that “simply because committees fall within the definition of ‘agency’ does not mean that they may be substituted for a particular body (a board or council) accorded a specific responsibility (entertaining public commentary) by the Legislature under the Sunshine Act.”

The three dissenters on the seven-member Court found that not only that there was no doubt the General Assembly was aware of Philadelphia’s long-standing, preexisting practice of receiving public comment in special meetings conducted by Council committees, and sought to preserve it, but that testimony at the committee level was more effective. “In this case, and consistently with the practice in Philadelphia for over half a century, appellants were allowed to provide input to the committee in advance of the Council meeting at which the bill was passed, so it appears they actually had a more realistic opportunity to participate in shaping the legislation, rather than speaking at the very meeting where the vote was taken.”

In contrast, Washington’s Open Public Meetings Act explicitly references the fact that testimony may be taken at committee meetings. RCW 42.30.020(2) defines “Governing body” to include “the multimember board, commission, committee, council, or other policy or rule-making body of a public agency or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.” (Emphasis added.)

In fact, a committee or other subsidiary body created by the full council or commission in Washington is required to observe the Open Public Meetings Act and allow testimony to be given in public. In 2001, for example, the City of Lakewood’s adult cabaret ordinance was held invalid because a Planning Advisory Board created by the City Council took testimony about the proposed ordinance in closed door sessions. Clark v. City of Lakewood, 259 F.3d 996, (9th Cir. 2001).

There is, however, always a balance between allowing for public testimony and the need for efficiency and decorum. See, Steve DiJulio’s article: “Balancing the Council’s Right to Manage Meetings With Expectations of Citizens.”
 

Pennsylvania Court Denies Blanket Exemption for Homeland Security Purchases

A Pennsylvania appeals court recently overturned a trial court ruling that allowed the Pennsylvania Emergency Management Agency (PEMA) to withhold the complete list of the recipients of goods and services PEMA purchased with Homeland Security funds in response to a disclosure request from a Pittsburgh newspaper reporter. Bowling v. Office of Open Records, 2010 Westlaw 395637, February 5, 2010. The Court found that while disclosing the location of certain items, such as computer servers and biochemical testing equipment could be harmful to security, identifying the number and location of such items as bungee cords would not. The Court explicitly acknowledged the “enormity of the task” that individually identifying the non-sensitive items would create for PEMA, but nevertheless held that Pennsylvania’s new disclosure law required greater access to the Commonwealth’s public records.